THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE
(PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
The
Ministry of Law and Justice has notified the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”),
which seeks to provide protection to women against sexual harassment at the
workplace. The Act also imposes certain duties and obligations on employers and
lays down the mechanism for dealing with complaints of sexual harassment at the
workplace. The Act is a result of inter alia, the landmark judgement of
the Supreme Court in Vishaka and Others v. State of Rajasthan and
Others1.
What is a workplace?
A
workplace includes any private office, organisations, society, trust where any
commercial, professional, vocational, educational or other services including
production, supply, sale are carried out. It also includes any transportation
provided to an employee and/or any place visited by an employee arising out of
or during, and in the course of employment.
Who can file a complaint?
Any
woman who alleges to have been a victim of sexual harassment at a workplace,
irrespective of whether she is employed or not, can file a complaint. The Act
also defines an employee to mean a person employed on regular or ad-hoc basis,
contract labour, and includes a co-worker, probationer, trainee or an
apprentice. If the aggrieved woman is unable to make a complaint due to physical
or mental incapacity or death or otherwise, the legal heirs or other person as
prescribed in the rules made under this Act (“Rules”) can also make a
complaint.
What is sexual harassment?
The
definition of sexual harassment in the Act includes any unwelcome sexually
determined behaviour as physical contact and advances, a demand for sexual
favours, making sexually coloured remarks, or showing pornography, etc, and any
other physical, verbal, or non verbal conduct of a sexual nature.
Who is an employer?
In
so far as the private sector is concerned, employer means any person
responsible for the management, supervision and control of that workplace.
Redressal Mechanism
Composition
of Complaint Committees
All
employers are required to constitute an Internal Complaints Committee (“ICC”)
at each administrative unit or branch. The ICC will be a committee of minimum
four members under the Chairpersonship of a senior woman employee. At least two
members are to be selected from amongst the employees preferably committed to
the cause of women or having experience in social work/legal knowledge. The
fourth member is required to be from a non-governmental organisation or
association committed to the cause of women or a person familiar with the
issues relating to sexual harassment. The term of office of the chairperson and
members of the ICC is three years.
1 (1997)
6 SCC 241.
A
District Officer notified under the Act will constitute Local Complaints Committee
(“LCC”) at the district level. The LCC shall look into complaints from
domestic workers and complaints against the employer in a workplace. Further,
the LCC may also look into complaints from any workplace where the constitution
of an ICC is not feasible on account of there being less than 10 persons being
employed at such workplace.
Procedure
of the ICC/ LCC
When
a complaint of sexual harassment is made, the ICC/LCC should, prior to
initiating an enquiry, at the request of the complainant, make an attempt to
settle the matter through conciliation between complainant and respondent. If a
settlement is arrived at, no enquiry is required to be conducted and the
ICC/LCC shall record the settlement and forward the same to the
employer/District Officer for further action.
If
no settlement can be arrived at, the ICC/LCC is required to initiate an inquiry
on the complaint of sexual harassment and complete the same within a time
period of 90 days. On completion of the inquiry, the report should be sent to the
employer or District Officer for further action. The employer is required to
take action on the report within 60 days. In making its inquiry the ICC/LCC has
been conferred with the powers of a Civil Court and may inter alia summon
and examine witnesses, require discovery and inspection of documents.
Interim
Measures
During
the pendency of an inquiry, the ICC/LCC may recommend to the employer to (i)
transfer complainant/ respondent to any other workplace, or (ii) grant leave to
the aggrieved woman, in which case the leave granted would be in addition to
the leave she would be otherwise entitled to if the case is proved, or (iii)
grant any other relief.
Actions
that can be taken on a Complaint
Where
the complaint has been proved to be true , the ICC/ LCC can recommend action in
accordance with the provision of service rules applicable of the organisation
to the respondent. In case no service rules of the organisation exist, action
against the respondent would be as per the Rules. The ICC can also recommend
the employer to deduct an appropriate sum as compensation to be paid to the
aggrieved woman/her legal heirs, from the salary of the respondent. In case the
respondent fails to pay such sum, the ICC/ LCC may ask the District Officer to
recover such sum as an arrear of land revenue.
In
case of malicious or false complaint the ICC/LCC may make a recommendation to
employer/ District Officer to take action against the aggrieved
woman/complainant in accordance with service rules or the Rules.
Appeal
If
any person is aggrieved from the recommendations of the ICC/ LCC or the
non-implementation of such recommendations, she/ he may, within a period of 90
days, prefer an appeal to the court or tribunal in accordance with the
provisions of the service rules applicable to the said person. In case no such
service rules exist then, the person aggrieved may prefer an appeal in such
manner as may be prescribed by the Rules.
What
are the duties of an employer?
Apart
from constituting an ICC, as discussed above, every employer is required to inter
alia create an environment which is free from sexual harassment. Employers
are required to organize workshops and awareness programmes at regular intervals
for sensitizing the employees about the provision of this legislation and
display notices regarding the constitution of the ICC, penal consequences of
sexual harassment etc.
The
employer is also required to make an annual filing, which shall include the
number of cases filed in his organisation, if any, and their disposal under
this Act to the District Officer. If no such annual report is required to be
prepared, then the employer shall intimate such number of cases, if any, to the
District Officer.
Penalties
against employer
A
fine of Rs 50,000 will be imposed on the employer in case of violation of
Section 4, 13, 14, 22 or other provision under the Act. In case of subsequent
violations, the amount of fine will be double together with penalty in the form
of cancelation of his licence, withdrawal or non-withdrawal of the registration
required for carrying out his activity.
Analysis
This
Act is a welcome change to create a safer working environment for women and if
implemented in its correct spirit would address questions of gender disparity
in the workplace. However, the Act as a legal document has certain limitations.
The
Act fails to address the question of prevention of sexual harassment of male
workers, whether by women or men co-workers/ bosses. Further, the composition
of an ICC would require organisations to ensure that they have staff with
adequate knowledge to deal with such complaints. Further, the Act is unclear regarding
the reappointment of persons appointed to an ICC in a workplace and
consequently there may increase in compliance costs of employers.
Please
also note that the remedies under this Act are not exhaustive and an aggrieved
person may file a criminal matter under Section 354A of the Indian Penal Code,
1860 (as amended by the Criminal Laws (Amendment) Act, 2013).
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